BACKGROUND
Plaintiff-Appellant Richard Feliciano has filed a motion in this court to disallow the costs on appeal sought by defendants-appellees Donald Selsky and Catherine Wronski. Feliciano is a prisoner who was incarcerated in thе Riverview Correctional Facility, a New York State prison in Og-densburg, New York. Wronski is a state hearing officer who conducts prison disciplinary hearings, and Donald Selsky is the Special Housing Unit Director who reviews appeals from disciplinаry determinations. Both are employed by the New York State Department of Correctional Services.
On January 14, 1994, Feliciano was charged with violating a prison rule by participating in an assault on another inmate. Wronski found Feliciаno guilty of the rule violation after conducting a disciplinary hearing. She imposed a penalty of 730 days in the Special Housing Unit and related penalties, including a recommended loss of good time credit. Selsky affirmed the hearing results fоllowing an administrative appeal- by Feliciano.
By an Article 78 petition filed in the New York State Supreme Court on August 18, 1994, Feliciano challenged the affirmed findings. He argued that he was not afforded due process at the hearing and that the rule violation determination was not supported by the evidence. On November 28, 1994, the state court granted the petition, vacated the findings and remanded for a rehearing. On rehearing, Feliciano was found not guilty, although he ended up sеrving 356 days in the Special Housing Unit.
On May 22, 1995, Feliciano filed a complaint in the United States District Court for the Northern District of New York alleging claims under the provisions of 42 U.S.C. § 1988. His claim against Wronski was based on her failure to call four specified witnessеs at the disciplinary hearing, thereby depriving him of due process. 'His claim against Selsky was based on the affirmance of Wronski’s findings without conducting a thorough investigation, thereby subjecting him to cruel and unusual punishment as well as depriving him of due process. The complaint included a demand for substantial damages. The dis
By summary order dated June 12, 1997, we reversed the judgment of the district court and remanded the case for further proсeedings, finding that the district court erred in granting the motion without instructing Feliciano about the consequences of a failure to respond to a summary judgment motion. On remand, the district court once again granted summary judgment dismissing the complaint. With respect to the denial of Feliciano’s request to call the four designated witnesses, the district court determined that the hearing officer’s ruling did not constitute a due process violation. The court reasoned that the witnesses requestеd were unable to testify unequivocally regarding Feliciano’s involvement in the affray because they were not eyewitnesses and their testimony would have been cumulative in any event.
In a summary order filed on October 20, 1999, this panel affirmed thе summary judgment entered in the district court. We found no deprivation of due process in the hearing or in the administrative appeal. In arriving at our determination, we noted the general rule in this circuit that prison hearing officers have the disсretion to keep disciplinary hearings within reasonable limits and that this discretion includes the power to refuse to call witnesses whose testimony may reasonably be regarded as non-probative or duplicative. Applying this rule to thе facts of this case, we observed that Feliciano called eight alibi witnesses, two of whom were corrections officers, but did not indicate what additional evidence the four designated additional witnesses would present. He cоnceded that none of the latter was an eyewitness to the assault. Accordingly, we concluded that the hearing officer had no reason to believe that the testimony of those witnesses would be relevant, and a due process claim for failure to call them was meritless.
Following the entry of judgment in this court, the defendants-appeliees filed and served a bill of costs, dated October 22, 1999, in the sum of $54.32, representing the expense of printing fourteen copies of appellee’s brief. In response, Feliciano filed papers dated October 31, 1999 and entitled “Objections to the Bill of Costs.” We construe Feliciano’s papers as a motion to disallow costs.
In the “Argument” portion of his papers, Feliciano contends that his in forma pau-peris status alone should preclude the ap-pellees from claiming costs. He asserts that “a statute permitting the imposition of costs against non-frivolous appeals brought by indigent prisoners is not rationally related to the achievement of any valid governmental purpose, and thus, violates appellant’s right to Equal Protection of Law under U.S. Constitutional (sic) Amendment Fourteen.” Feliciano notes that the district court did not cеrtify that his appeal would be taken “in bad faith” and, analyzing the statutes and rules pertaining to bills of costs, contends that any decision to impose costs upon one proceeding in for-ma pauperis should be based on ability to pay and reasonаbleness of costs. Finally, Feliciano argues that the costs demanded by appellees are excessive and should be reduced and that he should be entitled to pay any costs out of his prison account rather than in a lump sum аs demanded.
ANALYSIS AND DISPOSITION
Rule 39 of the Federal Rules of Appellate Procedure provides that costs shall be taxed against the appellant if a judgment is affirmed “unless the law provides or the court orders otherwise.” Fed. R.App. P. 39(a)(2). Costs include the expenses entailed in printing the brief, subject to a maximum rate fixed by local rule.
See
Fed. R.App. P. 39(c), 2d Cir. R. 39. These provisions would allow for the automatic taxation of the expenses of printing the briefs as sought by the appellees in this case, but for the
in forma pauperis
status of Feliciano. The rights and obligations of an indigent prisoner who seeks to prosecute an action in that status are governed by the provisions of 28 U.S.C. § 1915,
The PLRA requires that a prisoner seeking to proceed in forma pauperis submit a certified copy of his prison trust fund account statement for the last six months, see 28 U.S.C. § 1915(a)(2), as well as an affidavit attesting to his inability to pay the filing fee, see § 1915(a)(1). Although the prisoner is required to pay the filing fee in full, he may, if he is not able to pay the fee immediately, make the following payments: an initial filing fee equal to twenty percent of the average monthly deposit to his account or the average monthly balance in the account for the six-month period preceding the filing of the complaint or the notice of appeal, whichever is greater. See § 1915(b)(1). The prisoner must thereafter make monthly payments equal to twenty percent of the income credited to his account during the preceding month, whenever the account exceeds $10.00, until the balance of the filing fee is paid in full. See § 1915(b)(2).
A prisoner who is unable to make the requisite initial filing fee payment for a civil action or appeal still may proceed with his case аnd pay the entire fee over time. See § 1915(b)(2),(4). The PLRA directs dismissal of an action or appeal brought in forma pauperis upon a determination that the case “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monеtary relief against a defendant who is immune from such relief.” § 1915(e)(2)(B). As in the past, a prisoner who is permitted to proceed in the district court in forma pauperis may proceed on appeal in the same status without further authorization. See Fed. R.App. P. 24(a)(3). Thе exception is when the district court certifies either that the appeal is not taken in good faith or that the prisoner is otherwise not entitled to go forward in the status of an indigent. See id.
With respect to costs, the
informa pau-peris
statute has for some time provided that “judgment may be rendered for costs at the conclusion of the suit or action as in other proceedings.” § 1915(f)(1). Although there appears to be no definitive precedent in this circuit in regard to the taxation of costs on appeal prior tо the PLRA, we have noted that “[s]ome circuit courts, in cases where the United States was not a party, have held that costs may be assessed against an unsuccessful appellant proceeding
informa pauperis.” Maida v. Callahan,
Most pertinent to the motion before us is the portion of § 1915 that provides for the payment of full costs in the event that the judgment requires it. See § 1915(f)(2)(A). This provision falls within the “law provides otherwise” language of Fed. R.App. P. 39(a), which allows costs to be taxed against appellants when the judgment is affirmed “unlеss the law provides or the court orders otherwise.” When we issued our summary order affirming the judgment of the district court in this case, we did not order the payment of costs by Feliciano. Accordingly, the judgment entered by the Clerk of this Court under the provisions of Fed. R.App. P. 36 contains no provision for costs. Unless there is a specific direction by the court for the payment of costs by a prisoner proceeding informa pauperis, no costs may be taxed by the prevailing party. This in no way detracts frоm the ability of a court to require, as a matter of discretion, that the indigent prisoner pay the costs, or some part of them. Whether assessed by a district court or by this court, the discretionary imposition of costs should be informed by any fаctor the court deems relevant, including “the purpose of the forma pauperis statute, the history of the party as litigator, good faith and the actual dollars involved.” 16A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3985 at 710 n. 8 (1999).
CONCLUSION
In the absencе of any provision in the judgment of this court for the assessment of costs against Feliciano, the motion to disallow costs is granted. The Clerk of the Court will refrain from taxing the bill of costs filed by appellees.
Notes
. Although § 1915(f)(2)(B) refers to § 1915(a)(2) for the manner of payment, the actual process for payment is described in § 1915(b)(2).